Sunday, July 08, 2007

While the students are discussing, Tom's warming up the guitar for the world premiere of Monster.

He's just finished about 40 minutes on the nature of the law, stressing to students the Lon Fuller point that law is ultimately the enterprise of subjecting human behavior to the governance of rules. Thus law is more than what the state produces but rather is the whole set of rules, norms, customs and state law that enables us to coordinate our behavior.

One element of this process that Tom didn't emphasize today is that what it means to coordinate our behavior is to enable us to form reliable expectations of the behavior of others. The law, like every other social institution, operates by providing an agreed-upon set of rules that allows to form expectations about others. For example, the institution of marriage provides us with expectations about people who call themselves "married." (One might note the ways in which "marriage-lite" institutions such as civil unions or domestic partner arrangements undermine the signaling function of marriage - another argument in my book for extending marriage rights to all.) When a person says "I'm married," we can form a set of fairly reliable expectations about his or her behavior, e.g. he or she is unlikely to be potential sexual partner.

This is also the relationship between law and order. From a Hayekian perspective, the notion of order simply refers to increasingly reliable expectations and the complexity it can produce. Good law produces complex orders.

When we link this to polycentric law, two points arise:

1. Having multiple sources of law is beneficial as it allows for competition among sets of rules, which is likely to produce sets of rules that survive by best coordinating behavior by assisting expectation formation.

2. However, the potential problem is whether having multiple systems in play at once makes it harder to form reliable expectations.